Barnett v. Simmons, 197 P.3d 12, 2008 OK 100 (2008)
In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him. Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard drive. Plaintiff objected, but the parties attempted to reach agreement as to how to accomplish production. No agreement was reached. Rock Oil filed a motion to compel and the court granted the motion. Although the parties were then able to agree on a neutral examiner, the plaintiff dismissed his claims prior to the examination, but expressed his intent to re-file within three months.
Several weeks later, Rock Oil filed a motion for the appointment of a neutral computer examiner and for sanctions and contempt of court based on plaintiff’s apparent spoliation of electronic computer files. In support of this motion, Rock Oil indicated that it learned through a third party that the plaintiff’s computer had been worked on by others and may have been compromised. Plaintiff responded that the files were not produced prior to dismissal and admitted that he had work done on his computer. He further argued that Rock Oil made no showing of willful destruction and that he did nothing inappropriate.
Despite Barnett’s voluntary dismissal, the trial court retained jurisdiction to impose sanctions for violations of court orders entered prior to the dismissal. The court granted Rock Oil’s motion, and the drive was examined by a neutral third party. During a hearing on the matter, Rock Oil argued that plaintiff was aware of Rock Oil’s attempts to inspect his computer, as well as the order allowing such inspection and further contended that he acted deliberately to destroy evidence. Plaintiff countered that he was a novice computer user who had merely employed an expert after he experienced problems with his computer due to viruses, spyware and adware. He maintained that no relevant evidence was intentionally deleted.
Nonetheless, the record reflected that at least three kinds of “wiping” software had been downloaded to plaintiff’s computer during the time of his negotiations for inspection with Rock Oil and that one program was accessed on the day Rock Oil’s motion to compel was granted. Moreover, after defendant’s motion to compel was granted, plaintiff contacted the computer expert to work on his computer but did not inform him that the computer was the subject of a court order or of the need to preserve certain files. The expert subsequently testified that he could have preserved the files had he known it was necessary. Instead, the expert removed the hard drive, used a “drive wiper” and performed targeted destruction of files because plaintiff allegedly did not want to lose the settings on his computer. Plaintiff claimed the use of wiping software was the expert’s idea. The neutral examiner’s analysis of the hard drive indicated that no files associated with viruses were destroyed by the wiper and that the log indicating which files had been deleted had itself been deleted.
The trial court declined to impose sanctions finding that Rock Oil had failed to show that the plaintiff’s actions were willful “rather than those of a computer novice.” Rock Oil appealed and in a split decision, the Court of Appeals affirmed the trial court’s finding that plaintiff’s conduct was not willful but remanded for reconsideration of sanctions in light of whether the conduct was negligent. Both parties filed petitions for write of certiorari and both were granted.
Initially, the Oklahoma Supreme Court found that despite dismissal, the trial court retained jurisdiction over the issue of plaintiff’s violation of the trial court’s order compelling production of the hard drive.
The court’s analysis then turned to the issue of sanctions and the “willfulness” required in the destruction of evidence sufficient to impose sanctions. The court first pointed to Oklahoma’s discovery code which allowed the imposition of sanctions for a party’s failure to obey an order to provide or permit discovery. The court also noted that even absent an order, a trial court has inherent authority to impose sanctions for discovery abuse. The court continued in its analysis, relying in part on interpretations of Federal Rule 37, upon which the relevant Oklahoma code was modeled, pointing out that a party need not act willfully or in bad faith, but rather that a party refuses to obey simply by failing to comply with the order. The court concluded that “willfulness of a party’s conduct is relevant to the severity of the sanction to be imposed, not whether a sanction should be imposed.”
The court then discussed the inherent authority of a court to sanction, even where no order was in place. Specifically, it noted that Holm-Waddle v. William D. Hawley, M.D., Inc., held that “an examination reasonably foreseeably destructive of evidence without notice to opposing counsel which does result in destruction of evidence should expose a party to severe sanction.” 1998 OK 53, 967 P.2d 1180 (1998). In that case, the court stated:
When an expert employed by a party or his attorney conducts an examination reasonably foreseeably destructive without notice to opposing counsel and such examination results in either negligent or intentional destruction of evidence, thereby rendering it impossible for an opposing party to obtain a fair trial; [sic] it appears that the court would not only be empowered, but required to take appropriate action, either to dismiss the suit altogether or to ameliorate the ill-gotten advantage.
Providing a laundry list of the plaintiff’s questionable actions, including plaintiff’s retention of a computer expert to work on his computer without informing defendant’s counsel or the expert performing the alleged repairs, the Supreme Court then found “that the trial court in this case erred…by applying an erroneous standard and failing to make necessary findings.” The court further stated that the trial court “failed to take into account varying degrees of willfulness and failed to consider the standard of the above quoted case.
Accordingly, the Supreme Court vacated the opinion of the Court of Appeals and reversed the order of the trial court. The case was remanded for further consideration.
A full copy of the decision is available here.